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Bartman v. Burrece

United States District Court, D. Alaska

August 18, 2014

BILLY BARTMAN; MASSA SPUD; WASSILLIE CHOCKNOK; MARILYN ETUCKMELRA; ALVIN EVON; IRENE GAMECHUK-OLES; NELLIE GAMECHUK; CHRISTIAN GLOKO; VERA GLOKO; ALBERT ITUMULRIA; LESTER MOORE; MARVIN NICKETA; VINCENT NICKETA; STEVEN PAUL; WASSILLISIA PAUL; RAYMOND SHANGIN; PETER NANALOOK; TIMOTHY JENKINS; PETE OLSON; MIRIAM OLSON; NORMAN GLOKO, SR., Individually and on Behalf of NORMAN GLOKO, JR., a Minor Child, Plaintiffs,
v.
CHARLES BURRECE; JOHN DOES 1-5; TRIDENT SEAFOODS CORPORATION; MAGONE MARINE SERVICES, INC.; DANIEL MAGONE; RESOLVE MARINE GROUP, INC.; and ALASKA CHADUX CORPORATION, Defendants.

ORDER GRANTING PLAINTIFFS' MOTION, TO REMAND

RALPH R. BEISTLINE, District Judge.

I. INTRODUCTION

Before the Court is Plaintiffs' Motion for Remand to State Court pursuant to 28 U.S.C. § 1447(c) at Docket 21. Plaintiff originally filed this suit in the Superior Court for the State of Alaska, Third Judicial District at Dillingham, alleging claims for loss of past and future commercial fishing income, subsistence foods, subsistence and cultural activities, and damage to real and personal property under Alaskan law.[1] Defendant Trident Seafoods Corporation removed the action to this Court, citing 28 U.S.C. § 1333 and, alternatively, 28 U.S.C. § 1332 as the basis for federal subject matter jurisdiction. Also before the Court is Defendant Alaska Chadux's Motion to Dismiss at Docket 10 and Plaintiffs' Motion for Leave to Conduct Discovery as to Jurisdictional Facts at Docket 34.

The Court concludes that because the parties have submitted memoranda thoroughly discussing the law and evidence in support of their positions, oral argument is neither necessary nor warranted with regard to the instant matter.[2] After consideration of the submissions of the parties and the relevant law, the Court GRANTS Plaintiffs' Motion for Remand to State Court.

II. BACKGROUND

Plaintiffs allege that they operate commercial salmon set nets at the Igushik River or engage in subsistence fishing in the Bristol Bay salmon fishery. Plaintiffs allege that Defendant Charles Burrece, a resident of the State of Alaska, owned and operated the F/V Lone Star as a tender vessel for Defendant Trident Seafoods Corporation ("Trident"), a Washington corporation.[3] Plaintiffs further alleged that on or about June 30, 2013, F/V Lone Star capsized and sank in Bristol Bay, Alaska, due to actions by Defendant Burrece and five other currently unidentified defendants.[4]

According to Plaintiffs' pleadings, F/V Lone Star had 13, 750 gallons of diesel fuel, 300 gallons of other petroleum products, and about 35, 000 pounds of salmon in its hold and began to leak fuel after sinking.[5] Plaintiffs allege that Defendant Alaska Chadux, an Alaska corporation, was hired as the spill response contractor to address the fuel leaking and negligently placed absorbent booms around F/V Lone Star which led to contamination and closure of the salmon fishery.[6]

Plaintiffs also allege that Defendant Magone Marine Services, Inc. ("MMS"), an Alaska corporation, and Defendant Resolve Marine Group, Inc. ("RMG"), a Florida corporation, were hired to remove the fuel from the sunken F/V Lone Star and raise it from the seabed.[7] During the course of the salvage operation, Plaintiffs allege that MMS and RMG caused or allowed a substantial amount of salmon and other waste to be spilled from F/V Lone Star's hold into the ocean and nearby Igushik River.[8] Plaintiffs allege that the discharge of salmon waste attracted bears and led to destruction of Plaintiffs' nearby set nets and cabins.

After Plaintiffs originally filed suit in Alaska state court, Defendant Trident removed the action to this Court.[9] Trident alleges that Burrece is, in fact, a Washington resident, the joinder of Alaska Chadux is fraudulent because of protections afforded while acting under the direction of the U.S. Coast Guard ("USCG") and the Alaska Department of Environmental Conservation ("ADEC"), and that MMS was fraudulently joined as a defendant because Plaintiffs cannot establish a claim against MMS. Plaintiffs now move to remand.

III. GOVERNING STATUTES

A. Removal to and Remand from Federal Court

Removal of a suit from state court to the federal court is based on the specific language of 28 U.S.C. § 1441. The general removal statute provides that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending."[10] Under 28 U.S.C. § 1447(c), after a case is removed from state court, if at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.

B. Original Jurisdiction in Admiralty or Maritime Matters

The Court has original jurisdiction in matters arising from admiralty or that are maritime in nature. Specifically, the statutory grant of admiralty jurisdiction provides that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they ...


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